When is a human rights claim a human rights claim?

12 August 2010 by

Shirin Jisha v The Secretary of State for the Home Department [2010] EWHC 2043 (Admin) – Read judgment

When is a human rights claim a human rights claim in an immigration context? The High Court has recently considered this question in the case of a Bangladeshi citizen who had her visa cancelled when returning from a trip abroad.

This case related to the proper meaning of section 113(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State had argued that the claimant’s claim was not a “human rights claim” because the claim was not made “at a place designated by the defendant” but served as part of her appeal to the Asylum and Immigration Tribunal against the defendant’s refusal to grant her leave to enter. It was held that the claim was a “human rights claim” within the terms of section 113(1).

“Human rights claim”

The claimant was a Bangladeshi citizen who had obtained multi-visa for entry clearance. On returning from a trip abroad and while the visa was still valid, she was sent a Notice for Refusal of Leave to Enter and her multi-visa for entry was cancelled on the grounds that she had made false representations and failed to disclose material facts to obtain it.

The refusal decision contained a One Stop Warning notice (“the one stop notice”) made under s. 120 Nationality, Immigration and Asylum Act 2002 (“NIAA”). The one stop notice stated that the claimant was entitled to appeal where the decision to remove her would be contrary to her rights under the ECHR. The notice indicated that her human rights claim, if she had one, should be outlined in a NOTICE TO APPEAL form. Under the Asylum and Immigration Procedure Rules 2005 (“the Procedure Rules”), this notice of appeal was to be filed at the Asylum and Immigration Tribunal (“AIT”), who would then serve it on the defendant.

The claimant appealed on a number of grounds. The third ground of appeal mentioned in her skeleton argument (but not pursued in oral submissions) was that her human rights under Article 2 of Protocol 1 ECHR (the right to education) would be violated. This was considered and dismissed by the Immigration Judge, as were the other grounds.

The claimant applied for a reconsideration, which was refused. She then applied for discretionary leave to remain on the grounds that her Article 8 ECHR rights (right to respect for private and family life) would be infringed, as she had established a private life in the UK since her arrival. On 20 July 2009 this was also rejected.

The claimant sought permission to judicially review the decision of 20 July 2009 on the basis that, amongst other grounds, para. 353 of the Immigration Rules was not followed when making the decision. Under para. 353, entitled “Fresh Claims”, when a human rights claim has been refused and there is no appeal pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The claimant argued her submissions pertaining to Article 2 of Protocol 1 ECHR had been her first “human rights claim”; her further submissions, in the form of her Article 8 claim, therefore had been wrongly categorised as a first human rights claim as opposed to a second, and therefore rejected without considering whether they amounted to a fresh claim.

The defendant contended that her alleged initial claim, namely her Article 2, Protocol 1 claim did not qualify as a “human rights claim” under para. 353 because the claim was not within the strict definition of a “human rights claim” under section 113 NIAA. Section 113 NIAA defined a human rights claim as “a claim made by a person to the Secretary of State at a place designated by the Secretary of State...”. The defendant argued that the claimant had not made the claim to the Secretary of State but to AIT, and in a pre-hearing skeleton as opposed to the preceding notice of appeal document.

Judicial review successful

The judicial review succeeded before HH Judge Anthony Thornton QC. He noted the following points:

– The definition of a” human rights claim” within section 113 is stated within that section as being applicable to that specific part (part 5) of the NIAA. As such, it is not strictly applicable to para. 353 of the Immigration Rules. While it is desirable that there should be consistency, the Immigration Rules (which are an expression of policy) are applicable in a much wider context that part 5 NIAA;

– According to the section 113 definition, it only applies “unless the contrary intention appears” in part 5 NIAA. Therefore, if it were to apply outside a part 5 context, then it would also be subject to any “contrary intention” expressed in the relevant context being considered;

– The definition requires that the notice be served “at a place designated by the Secretary of State”, but there has been no formal statement to date as to where or to whom the claim should be served in for it to qualify as a “human rights claim” under section 113;

– The claimant had been served with a one stop notice prior to making her first human rights claim;

– Para. 12(1) of the Procedure Rules require a Tribunal to send any a notice of appeal that it receives to the defendant;

– It is well established that human rights grounds may be argued before the AIT even if they have never previously been made as a claim to the defendant nor subject to a decision.

HHJ Thornton QC recognised that the first human rights claim (on Article 2 of Protocol 1) was not made to the defendant directly, that it was possibly only raised for the first time in the skeleton for the AIT hearing and that even when raised it was not relied upon to any significant extent. However, the claim had been specifically considered and dismissed by the Immigration Judge. Consequently, a human rights claim (save possibly in the strict sense of section 113) was expressly raised, considered and dismissed for the purposes of para. 353.

Further, the claimant had been specifically instructed by the one stop notice to put her human rights claim within the notice of appeal and return it to the AIT, who would serve it on the defendant. Therefore:

although it was arguable that the expression “human rights claim” in paragraph 353 is not confined in its meaning to the meaning provided by section 113, in the context of this case, section 113 has in fact been complied with since the human rights claim was served at a place designated by the defendant, namely on the AIT as designated in the one stop notice and by the Procedure Rules.

The defendant had cited two cases in support of their submissions, but it was held that they were not on point. In SS and others (Ankara Agreement – no in-country right of appeal) Turkey [2006] UKAIT 00074 the AIT held that the claimants’ human rights claim had not been served on the Secretary of State but on the AIT, contrary to section 113. However, the case pertained to the definition of a “human rights claim” within the context of part 5 of the NIAA as opposed to para. 353. In R (on the application of Garfield Rainford) v SSHD [2008] EWHC 2474 (Admin), 17 October 2008 the judicial review application to have a human rights claim recognised as a second human rights claim failed because, like SS, the initial claim had not been made to the Secretary of State but to the Asylum and Immigration Tribunal. However, unlike Ms Jisha’s case, neither Rainford nor SS involved either a one stop notice or consideration of para. 12(1) of the Procedure Rules.

It was therefore held that

Paragraph 353 is clearly applicable to a second claim, whether or not it has been expressly referred to and the defendant acts in contravention of that paragraph if a second claim is in fact submitted and is dealt with as a new first claim under part 5 of the NIAA.

The fact that the second human rights claim was apparently weak and lacking detail was irrelevant:

It is not for the Administrative to decline relief where there has been a significant procedural error by the defendant merely because, if the procedural error is corrected in a future decision, the claimant’s application is then unlikely to succeed.

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